SATYA NARAIN MAHTO Vs. RAJA RAM MAHTO

JUDGEMENT

(1.) Heard Mr. J.S.Arora, the learned counsel appearing on behalf of the appellants and Mr. Santosh Kumar Sinha, the learned counsel appearing on behalf of the respondents.

(2.) This is the defendants' second appeal against the judgment and decree of affirmance passed by the Additional District Judge, Buxar in T.A.No. 90 of 1987 on 30-4-1991 affirming the judgment and decree passed by Subordinate Judge I, Buxar in T.S.No. 125 of 1981 on 30-7-1987.

(3.) The suit was filed by the plaintiff-respondents praying for partition of their half share in the suit property described in Schedule- 6 of the plaint on the basic facts, as stated in the plaint, that Bhagirathi Mahto was the common ancestor, who had two sons out of whom the plaintiffs belong to the branch of one son and the defendants 1st set are the descendants of the branch of another son. The family property consisted of total 1.54 acre of land as recorded in C.S.Khata no. 277 prepared in the year 1909-10. It is the case of the plaintiffs that there had been partition by metes and bounds before 1909-1910 between the parties with regard to the entire family property consisting of 1.54 acres of land except plot no.799, 729 and 415 which remained joint.The cadastral survey record of rights was accordingly prepared wherein the possession of the parties had been mentioned against each plot according to the share allotted in partition , but plot no. 799 which remained joint had been wrongly mentioned in possession of defendant 1st set although the other two plots i.e., 729 and 415 had been shown to be joint. It is the case of the plaintiffs that in the municipal survey of the year 1925 the lands allotted to the share of the plaintiffs as mentioned in Schedule 4 of the plaint had been separately recorded in Khata No. 436 and similarly Khata no.442 was prepared consisting of the lands , as mentioned in Schedule 5 of the plaint, allotted exclusively to the defendant 1st set but also included the three joint plots. The plaintiffs have thus sought the relief for partition of the three joint plots as described in Schedule-6 of the plaint.